Merklinger v. Lambert

• Decision Date: 01 March 1909
• Citation: 76 N.J.L. 806,72 A. 119
• Parties: MERKLINGER v. LAMBERT.
• Court: New Jersey Supreme Court

72 A. 119

76 N.J.L. 806

MERKLINGER

v. LAMBERT.

Court of Errors and Appeals of New Jersey.

March 1, 1909.

Error to Supreme Court.

Action by Benedict Merklinger, administrator, etc., of the estate of George B. Merklinger, deceased, against Asher Lambert. Verdict for defendant, and plaintiff brings error. Affirmed.

Samuel Kalisch and Ralph E. Lum, for plaintiff in error. Edward M. Colie, for defendant in error.

VROOM, J. The action was in tort, and brought by the plaintiff as administrator of his deceased son, George B. Merklinger. The cause of action, as laid in the declaration, was as follows: "The said defendant, by his servant, unlawfully, carelessly, negligently, and improperly drove, run, and propelled a certain automobile along Pennsylvania avenue, a public street in the city of Newark, in the county of Essex aforesaid, so as to run into and collide with the said George B. Merklinger, deceased, who was then and there lawfully in and upon said highway, and was then and there lawfully riding a bicycle in, upon, and along said highway, and by means whereof the said George B. Merklinger was violently thrown and pushed from said bicycle, and then and there was run over by said automobile, and then and there sustained mortal injuries, of which said mortal injuries the said George B. Merklinger died." The accident in question happened in the morning of December 14, 1905, in Pennsylvania avenue, in the city of Newark, and between Wright street on the south and Emmett street on the north. Pennsylvania avenue had a width of 44 feet 7 inches from curb to curb. In the center of the avenue there were double trolley tracks, and the surface of the avenue was paved with asphalt. It appeared that the defendant's chauffeur was propelling the automobile on the right-hand side of the avenue going south toward Wright street, between the trolley tracks and the curb; that the width between the outer rail of the trolley track and the curb was 15 feet and 4 inches. The plaintiff's intestate was riding a bicycle, and was coming from Wright street toward Emmett. He was riding his bicycle also on the left-hand side of the road, and the accident happened about the middle of the block, and when the automobile was close to the curb.

The testimony of the plaintiff's witnesses, was that the accident was due to a collision between the automobile and the bicycle of the deceased on which he was riding at the time of the collision; one witness testifying that the automobile and bicycle came together "face to face," and another, while describing the accident, said, "There is where they faced together, and it [the automobile] knocked him [the deceased] off, and knocked him under the machine." The testimony on the part of the defendant disclosed that the automobile and bicycle were on the same side of the avenue, and the manner of the happening of the accident was clearly stated by Thomas J. Butler, the defendant's chauffeur, as follows: "I was coming down Pennsylvania avenue on the right-hand side, and I had the two left-hand wheels of the car running over the rail of the right-hand track, and as I got to Emmett street I noticed a bicycle rider coming towards me, and his wheel was between the same two rails that I had my two left-hand wheels, and as I noticed him, coming up between the rails, the asphalt was broken each side of the rails, and in order that he would not have to cross the rail, I just tooted the horn and turned my car to the right, toward the curb, thinking that he would come on up between the two rails, but just as I got my car straightened at the curb, he turned in towards the curb to his left, and I thought he was going to make a stop at some of those houses, so I turned my car out again to the left, so that he could get at the curb, and as I did that he made another turn towards me, and I noticed that he was smiling. I thought maybe he was joking or trying to fool me, or something. Then I pulled my clutch?that is, I took the power away from the car, you see—and turned to the right toward the curb again, and by this time we were quite close, and he made another turn right towards me again, and I put my brakes down and stopped the car inside of half a car length; but he found that he was in front of the car then, and he made one—seemed to make one last effort to get away—and his bicycle skidded, and he came down with a loud crash on the pavement, and he seemed to go headfirst under the car." Three other witnesses on the part of the defendant testified as to the accident, one of whom said that the deceased turned off right in front of the automobile, but was uncertain whether the automobile struck the bicycle, or whether the bicycle fell without being struck. Another one saw the turns of the automobile and bicycle as testified to by the chauffeur, and saw the bicycle fall with the deceased on it, and heard his head hit the asphalt, and also said that the wheel did not hit the automobile, and that the deceased fell off the wheel trying to turn, and that he was on the ground before the automobile went over him. The third witness also testified to the turns of the automobile and the bicycle, and that the wheel slipped on the asphalt and that the man went over head foremost, and slid right under the machine. The evidence was clear and uncontradicted that there Was no mark or scratch on the automobile indicating a collision. The issue made by the pleadings was the issue of fact presented by the testimony, the contention on the part of the plaintiff being that the automobile of the defendant was so negligently driven that it ran into and collided with the deceased while riding upon a bicycle, by means whereof he was thrown or pushed from the bicycle and run over by the automobile, while the defendant showed there was no collision; that the bicycle of the deceased slipped and fell, and with its rider slid under the automobile at the very moment the automobile stopped. On the submission of the case to the jury a verdict was rendered for the defendant. The plaintiff in error assigned 13 errors, all either to the charge of the court, or to the refusal of the trial court to charge as requested. Of these 7 were relied upon by counsel in argument.

The first was the refusal of ...